Image description: A scene at a British citizenship ceremony, with one person dressed in red robes standing at a podium, another person reading out of a file and the British flag in the background.
Citizenship still matters; its absence denotes precarity. As Covid19 travel restrictions reminded us, at its international core lies the right to enter one’s country and reside therein. Domestically, in most jurisdictions, citizenship serves as an eligibility criterion for electoral participation; excluded non-citizens have limited capacity to advance their rights through the political process.
Against this background, last week’s UK Supreme Court (UKSC) judgment in R (O (a minor)) v Secretary of State for the Home Department  UKSC 3 is lamentable and concerning. The claimant, O, was born in the UK in July 2007, acquiring Nigerian citizenship at birth. Since her tenth birthday she had been eligible to apply for registration as a British citizen, pursuant to section 1(4) of the British Nationality Act 1981 (BNA). Alas, her mother, a single parent who was receiving local authority support, could not afford the registration fee set by the Secretary of State (SoS) – £973 at that time (today it is £1012), but was only able to raise £386, just over the official estimated cost of processing the registration.
That this was a registration process of an eligible applicant; that the application fee was prohibitively high, well in excess of the cost of processing it; and that, absent registration, the applicant would be denied core citizenship rights – none of these were in dispute. For the UKSC, however, the decisive factor was the explicit authorisation granted by Parliament to the SoS pursuant to Section 68(1) of the Immigration Act 2014 to set fees taking into consideration, among other factors, not just ‘the cost of exercising the function in question’ but also ‘benefits that the SoS thinks are likely to accrue to any person in connection with the exercise of the function’ and ‘the promotion of economic growth’. The SoS may therefore levy an unaffordable fee on a child, born in the UK, wishing to register as a British citizen to be able to secure their citizenship rights, so that the Treasury coffers can be filled. Put simply: the SoS may render access to citizenship contingent on financial ability because ‘The appropriateness of imposing the fee on children who apply for British citizenship under section 1(4) of the 1981 Act is a question of policy which is for political determination’ (per Lord Hodge, ).
The judgment thus confirms that, despite section 1(4) BNA stating that a child ‘shall be entitled’ to register as a British citizen, that entitlement is qualified by the ability to pay the set fee. There is no statutory right to be registered as a British citizen. Nor is there a common law right to British citizenship. Neither can a right to citizenship be derived from the UK’s international law obligations (including under the Convention on the Reduction of Statelessness, which the UK ratified in 1966), due to a ‘dualist’ approach to international law.
EU citizenship is constitutionally grounded in Article 9 of the Treaty on European Union. Therefore, while the UK was still a member of the EU, the Rottman ratio could have arguably subjected decisions in respect of British citizens that would have an effect on their EU citizenship to a proportionality assessment, weighing the importance of the rights conferred through EU citizenship. By contrast, in its judgment, the UKSC applies ‘normal canons of statutory interpretation’ to the effective denial of access to British citizenship .
The precarity of British citizenship, absent constitutional protection, has been laid bare, and not for the first time. Last year, the UKSC refused to require the Home Secretary to allow Shamima Begum to return to the UK to challenge the decision to strip her of her British citizenship, applying to the decision to deny her effective access to the courts a Wednesbury reasonableness test (‘whether the Secretary of State has acted in a way in which no reasonable Secretary of State could have acted’, ).
A future Shamima Begum may not even know that she has lost her citizenship: the Kafkaesque stipulation in Clause 9 of the Nationality and Borders Bill, currently going through the House of Lords, would authorise the SoS to deprive a British citizen of their citizenship without giving them notice if they deem it to be ‘in the interests of national security’, in the interests ‘of the relationship between the UK and another country’, or ‘otherwise in the public interest’ (proposed new section 40(5A)(c) of the BNA).
The Bill also authorises the SoS to deprive a person of their citizenship status even if the deprivation would render them stateless, if the person’s British citizenship results from their naturalisation, the SoS is satisfied that it would be ‘conducive to the public good’ because the person has conducted themselves ‘in a manner which is seriously prejudicial to the vital interests of the UK’, and there are ‘reasonable grounds for believing’ that such person is able ‘to become a national’ of another country pursuant to that country’s law. Hence, a British naturalised Jew who holds no other citizenship would, by virtue of being deemed eligible to become an Israeli citizen pursuant to Israel’s Law of Return, now face a risk of deprivation if the SoS judges their conduct to be ‘seriously prejudicial’ to the UK’s (undefined) vital interests – a decision that, as per Clause 9 of the Bill, the SoS may make without giving notice.
In 2022 Britain, the SoS holds the tremendous power to affect access to British citizenship and, indeed, to take it away in increasingly non-transparent ways. For a UKSC committed to what Conor Gearty has recently described as ‘respect for orthodox Parliamentary sovereignty’, this phenomenon unfortunately does not ring alarm bells.